Delhi District Court
Smt. Manju Nagpal vs M/S Indusind Bank on 15 December, 2016
IN THE COURT OF SHRI A.K. AGRAWAL CIVIL
JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI..
SCJ No. 607594/16
Date of Institution : 14.08.2013
Date of reservation of judgment : 16.11.2016
Date of pronouncement of Judgment : 15.12.2016
Smt. Manju Nagpal
W/o Sh. Ramesh Nagpal
R/o 79, Ambica Vihar,
Paschim Vihar,
New Delhi 110087
.................Plaintiff
Vs.
M/s IndusInd Bank,
A banking company having its registered office
at 2401,Thimmayya Road, Pune 411001
Branch at Punjabi Bagh 33, North West Avenue, Club Road,
West Punjabi Bagh, New Delhi 110026
.................Defend
ant
SUIT FOR DECLARATION AND PERMANENT
AND MANDATORY INJUNCTION
JUDGMENT
1. Brief facts of the present case are that defendant is a banking company and is offering various facilities to the general public including maintenance of bank accounts as well as locker facility. Defendant also offers nomination for the said purpose and Suit No 607594/16 Manju Nagpal Vs. Indusland Bank 9/9 authorizes the nominee to maintain and operate the said account as well as locker in case of either death of the account holder or any other eventuality.
2 The plaintiff is the mother and Class I legal heir of late Sh. Pankaj Nagpal, who died unmarried on 18.07.2006. During his life time, Sh. Pankaj Nagpal was having a Savings bank account no. 0043 B92534001 and a locker no. 89 with defendant Bank. Late Sh. Pankaj Nagpal had nominated plaintiff as his nominee in respect of the above said Saving Bank account as well as locker so as to maintain and operate/receive the amount in cash upon his death or any other eventuality.
3. Further states that after death of her son, she informed defendant Bank on 18.07.2006 and also moved an application to claim the amounts lying deposited in the Savings Bank Account of deceased as well as the articles lying deposited in locker No. 89, being his nominee and also as the only legal heir of her deceased son as enumerated in ScheduleI of Succession Act, 1956. However, despite all the efforts of plaintiff, defendant Bank failed to either release the amount lying in the above Saving Bank Account to her and /or let her to operate the said locker.
4. Further states that having left with no other option, she filed a complaint with Banking Ombudsman, Reserve Bank of India vide letter dated 11.12.2012. Thereafter vide letter dated 15.03.2013, the office of Banking Ombudsman informed that her complaint was disposed off vide order dated 15.03.2012 whereby it was ordered that defendant shall adopt customer friendly procedure while returning the contents of locker. The office further ordered that the plaintiff was free Suit No 607594/16 Manju Nagpal Vs. Indusland Bank 9/9 to approach any other forum/court of law for redressal of her grievance. Thereafter documents were again filed by plaintiff with defendant bank vide her letter/representation dated 27.01.2013 thereby requesting defendant bank to complete all the formalities. The plaintiff also fulfilled all the requirements as required by defendant and also submitted the requisite documents vide letter dated 28.04.2013. However vide letter dated 23.05.2013, defendant once again asked the plaintiff to file written application for claim as well as claim form in a specified format. However, the defendant failed to send claim form as detailed in the said letter dated 23.05.2013. The plaintiff alongwith her husband and her son, visited defendant bank several times and informed that she had already submitted/filed the complete set of papers alongwith the claim form as required by the defendant bank but they failed to release the amount lying in the savings bank account and also failed to allow her to operate the above said locker.
5. Having no other option, plaintiff has filed this suit seeking relief that she be declared as nominee of the above said Savings bank account as well as Locker being mother and ClassI legal heir of the deceased Sh. Pankaj Nagpal and further she be allowed/permitted to operate the said locker and receive the articles lying in the said locker. Permanent injunction is also sought thereby restraining the defendant, its agents, representatives, etc., from breaking open the locks of locker no. 89 in the name of son of the plaintiff.
6. In the W.S filed by defendant, it is stated that as per their records, plaintiff, who was mother of deceased account holder, had been recorded as nominee U/s 45Z of the Banking Regulations Act 1949 and Rule (1) of the Banking Companies (Nomination) Rules 1985 only qua Suit No 607594/16 Manju Nagpal Vs. Indusland Bank 9/9 the Savings Bank Account and there was no such nomination in the case of locker account. It was also contended that this court does not have jurisdiction to adjudicate a matter pertaining to Succession Act as plaintiff was required to seek letter of administration qua the locker facility.
7. However, later on defendant stopped appearing before the court and it was proceeded exparte vide order dated 14.01.2015. Following issues arise for consideration in view of order dated 25.03.2015:
1. Whether the plaintiff is entitled to the decree of declaration that she is a nominee of deceased Late Sh. Panakj Nagpal as prayed for? OPP.
2. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for? OPP
3. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for ? OPP 4 Relief.
8. In plaintiff evidence, plaintiff examined himself as PW1 and Sh. Atul Bagai, relationship manager of defendant bank as PW2. In their evidence, following documents were exhibited : "The Affidavit of PW1 is Ex. PW1/A wherein averments of plaint have been reproduced, copy of Ration Card is Ex. PW1/1, copy of pass book of plaintiff issued by Andhra Bank is Ex. PW 1/2, copy of PAN Card is Ex. PW1/3, electricity bill is Ex. PW 1/4, copy of nomination form duly signed by Sh. Pankaj Nagpal is MarkX, copy of death certificate of Late Pankaj Nagpal issued by MCD is Ex. PW1/6, copy of death certificate issued Suit No 607594/16 Manju Nagpal Vs. Indusland Bank 9/9 by Kukreja Hospital & Heart Centre Pvt. Ltd is Ex. PW1/7, copy of application for claim is MarkA, copy of complaint dated 11.12.2012 is MarkB, copy of letter/information dated 15.12.2012 is Ex. PW1/10, copy of letter dated 15.03.2013 along with order dated 15.03.2013 is Ex. PW1/11, copy of letter/representation dated 27.01.2013 is Ex. PW1/12, letter dated 28.04.2013 is Ex PW1/3 and copy of letter dated 23.05.2013 is MarkC. The application form of savings account of Late Sh. Pankaj Nagpal along with relevant documents is Ex. PW2/1 (Colly), Nomination Form is Ex. PW2/2, the current status of account of late Sh. Pankaj Nagpal is Ex. PW2/3, Agreement of hiring of Locker No. 89, executed on 12.11.2005 is Ex. PW2/4, letter dated 12.06.2005 whereby Late Sh. Pankaj Nagpal authorized the bank to debit the rent of locker from his saving account is Ex. PW2/5, copy of another letter of deceased applicant Pankaj Nagpal is Ex. PW 2/6."
Thereafter PE was closed and final arguments were addressed on behalf of plaintiff.
9. I have now considered the submissions of Ld. counsel for the plaintiff and perused the evidence on record. My issuewise findings are as under:
10. ISSUE NO. 1: Whether the plaintiff is entitled to the decree of declaration that she is a nominee of deceased Late Sh. Panakj Nagpal as prayed for?
As per plaintiff, she was nominated as nominee by her deceased son late Sh. Pankaj Nagpal qua both savings bank account and locker no.89. However, defendant admitted plaintiff to be a nominee Suit No 607594/16 Manju Nagpal Vs. Indusland Bank 9/9 only qua savings bank account but denies that plaintiff was nominee even for locker facility. In this regard, plaintiff has relied on one document MarkX wherein plaintiff herein is shown as nominee of Sh. Pankaj Nagpal. The original of this document was not produced before the court as plaintiff states that it was deposited in bank but PW2, the official of defendant bank denied that any such document was lying with the bank. This witness further stated that he cannot affirm or deny that whether document MarkX is the copy of a genuine document or not though he also admitted that it probably was bearing the seal of corporate office of Bank. Furthermore, PW2 also admitted that the same format as is evident from document MarkX, is used by the said branch for providing nomination facility in respect of locker.
11. From the totality of all above facts, there is a strong preponderance of probability that the deceased son of plaintiff may have nominated her as his nominee even with respect of locker facility as execution of document MarkX is not categorically denied by the official of defendant's bank but rather his statement is evasive in this regard. The factum of nomination qua locker facility is further strengthened considering the fact that plaintiff herein is admittedly a nominee of the savings bank account of her deceased son and this savings account is liked to locker facility and the locker's rent was being deducted from this very account.
12. It is settled law that civil suits are decided on the basis of preponderance of probabilities which is in favour of the plaintiff in this case. Defendant has also not contested the suit which also tantamounts to implied admission of averments made in the plaint. Hence this issue is decided in favour of the plaintiff and against the defendant.
Suit No 607594/16 Manju Nagpal Vs. Indusland Bank 9/9
13. ISSUE NO. 2 : Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for?
As far as, this issue is concerned, plaintiff is seeking direction that she be permitted to operate saving bank accounts as well as locker of her deceased son. As per Banking Rules and Regulations, a nominee is only a person who is entitled to receive the proceeds of the account holder or the articles lying in the locker of deceased, in case of his death. A nominee is not an owner of those proceeds or articles and they will devolve upon legal heir of deceased as per succession law after they are released. Hence a nominee cannot claim to have any lawful right to operate bank account or the locker facility availed by the deceased but he can only receive its proceeds.
In Ram Chander Talwar & Anr vs Devender Kumar Talwar & Ors.(2010) 10 SCC 671, the Hon'ble Supreme Court held as under : "Section 45ZA(2) merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositor so far as the depositor's account is concerned. But it by no stretch of imagination makes the nominee the owner of the money lying in the account. It needs to be remembered that the Banking Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concerned with the question of succession. All the monies receivable by the nominee by virtue of section 45 ZA(2) Suit No 607594/16 Manju Nagpal Vs. Indusland Bank 9/9 would, therefore, form part of the estate of the deceased depositor and devolve according to the rule of succession to which the depositor may be governed."
Hence no such direction can be given to the defendant's Bank to allow plaintiff to operate the saving banks accounts as well as locker of her deceased son as account holder or locker holder. Though plaintiff is entitled to recover the proceeds of the saving banks accounts as well as goods and articles lying in the locker.
This issue is accordingly disposed off.
14. ISSUE NO. 3: Whether the plaintiff is entitled to the decree of permanent injunction as prayed for ?
Plaintiff is seeking direction that defendant be restrained from breaking open the locker of her deceased son. However, there is no such allegation in the plaint that defendant bank had any such intention or had attempted to break open the locker of plaintiff's deceased son. Hence there is no cause of action in favour of plaintiff to seek this relief. Mere apprehension of plaintiff cannot be ground of granting any such relief and that too without any reasonable basis.
This issue is accordingly decided against the plaintiff.
15. RELIEF With these observations, the suit of plaintiff stands partly decreed with the findings that plaintiff is a nominee of her deceased son qua both Savings bank account no. 0043B92534001 as well as locker no. 89, which were in the name of her deceased son Late Sh. Pankaj Nagpal. Plaintiff is also legally entitled to recover all the balance proceeds lying in the savings account and also to recover all the goods Suit No 607594/16 Manju Nagpal Vs. Indusland Bank 9/9 and articles lying in the locker of her deceased son. However, before goods and articles are released to plaintiff, the defendant shall prepare an inventory of the articles (with their description and weight and measurement), which are found in the locker and shall also provide a copy of the same to plaintiff before the articles are released. Photocopy of the articles should also be taken so that no dispute arises in future. Thereafter, defendant shall be at liberty to close the account of the deceased son of the plaintiff as well as his locker facility or to deal with it in any manner as per Banking Rules and Regulations. Plaintiff's suit stands dismissed qua other reliefs. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court ( A.K. Agrawal) today on 15.12.2016 Civil Judge 01 ( West)/Delhi Suit No 607594/16 Manju Nagpal Vs. Indusland Bank 9/9